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Ebel got time off sentence for being in programs he was booted from

Evan Ebel was fatally shot in a gunfight in Texas on March 21. (Denver Post file photo)

Colorado's prison system aggressively pushes inmates out of prison early by awarding them "earned time" for rehabilitation programs they never complete and by failing to deduct such time in many cases when inmates later break the rules.

Such generous policies by the Department of Corrections have helped allow the state to empty cells and save millions of dollars in recent years but have put Colorado in marked contrast to the rules applied in many other states and in the federal prison system, a Denver Post review has found.

The DOC practice of awarding earned time to inmates on a monthly basis — rather than on a yearly basis as state law dictates — locks officials into a system tilted toward giving prisoners time off, rather than holding them accountable with the threat of losing that time.

Evan Ebel, the parolee suspected of killing pizza-delivery driver Nathan Leon and DOC director Tom Clements last month, reaped the benefits by racking up 115 days of earned time off of his sentence, despite being cited 28 times over eight years for fighting, smearing feces on cell doors, inciting prison disruptions and threatening to kill correctional officers.

Ebel was twice enrolled in prison behavior-modification programs and both times was booted out — but he still pocketed dozens of days of earned time.

The DOC policies' impact continues to be felt far beyond Ebel, however. They result in extra earned time being awarded to many of the 20,000 inmates in Colorado's prisons.

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Last April alone, the DOC awarded 2,399 days to inmates in administrative segregation, considered among the most dangerous offenders in the prison system, according to a DOC report. Many states don't award earned time to inmates in so-called "ad seg," but a 2011 Colorado law allowed inmates such as Ebel to earn time there.

A major factor in the number of days the DOC hands out is the way it allows inmates to keep such days once they have been awarded. That practice is followed despite provisions in state law that allow prison officials to withdraw earned days after an annual review.

But DOC never established such annual reviews, according to DOC officials. Instead, prison case managers determine earned time at the conclusion of each month.

In an e-mail, DOC spokeswoman Alison Morgan wrote that the statute governing earned time, 17-22.5-405, only requires reviews "at minimum annually."

A further indication that DOC is not strictly following state law is that under its policies, the mechanism to "withdraw" or "restore" earned time once it has been "awarded" or "withheld" only applies if a later disciplinary hearing for an inmate's bad behavior in a particular month determines the inmate violated a rule. In that case, earned time can be withdrawn for that month only.

At the first of each month, earned time received or forfeited the prior month is "vested," meaning DOC won't take it away. Morgan defended DOC's monthly approach, explaining that prison officials established policy rules based on their interpretation of the law.

"This is more frequently than the statute mandates," Morgan wrote. "By addressing the award in real time, we are applying a consistent and fair analysis of offender performance and behavior."

Other states and the federal system include provisions for punishing inmates for long-term bad conduct or serious infractions up until the last day of their sentence. In Indiana, for example, an inmate can forfeit earned time received in prior years. With good behavior, he can also earn back time he previously lost.

"We try to encourage better behavior in the future by allowing inmates to earn it back," said Doug Garrison, spokesman for the Indiana Department of Corrections. "At the same time, the potential for losing past earned time is a disincentive to misbehave."

But some prisoners just don't care and are continually violating rules and make prison dangerous.

"We're not about to let them out early," Garrison said. "They are a danger to the community."

Even on the day of his release, prison officials considered Ebel a high-risk inmate and said it was likely that he would commit more crimes, DOC records show.

Without Ebel's earned time, he would have remained behind bars until late May, according to DOC records. A court's clerical error also led to Ebel being released from prison four years early.

Recently released DOC documents provide the most thorough accounting of the time Ebel spent behind bars.

Nearly all of his earned time was awarded in months he violated prison rules or while he was enrolled in special behavioral programs he was ultimately kicked out of.

Case managers who talked to The Post say they have been pressured to not punish inmates for bad behavior by docking them up to 10 earned days a month because it would delay their releases.

The state was seeking to save money during the budget crisis, and there are cost savings in having fewer prisoners. Colorado was able to close two prisons last year.

"We're trying to reduce our numbers because it's a money thing," said one DOC case manager who spoke on condition of anonymity because he was not authorized to comment. "I felt pressure to not do things that would take away earned time."

In one case, in which the case manager disciplined an inmate for breaking rules, the inmate appealed and a superior gave the inmate his earned time anyway, the case manager said.

Morgan declined to respond to the case manager's statements or to comment about why Ebel received earned time in months he was disruptive.

Ebel's bad behavior left him spending most of his prison time in either punitive or administrative segregation, despite a concerted effort by Clements to reduce the number of inmates in segregation and avoid releasing offenders from segregation directly into the community.

During Clements' administration, the number of inmates in ad-seg dropped from more than 7 percent of the total population to less than 5 percent, according to DOC records.

Slacker enforcement of prison rules has had an impact on inmate behavior, the case manager said.

"We're getting a lot more attitude," he said.

According to DOC records, Colorado saved about $12,000 in administrative segregation costs by releasing Ebel 115 days earlier.

Morgan said case managers assigned to each inmate use their own discretion to decide whether to award inmates earned time based on work, educational- or drug-programming participation, and good behavior.

"I'm not going to comment on the decisions made by a case manager," she said.

According to the federal prison system, maximum earned time of up to 47 days a year going back to the beginning of a prisoner's sentence can be forfeited depending on the seriousness of his offense. That is true until the last day of the offender's sentence, according to Bureau of Prisons regulations.

"It doesn't vest until an inmate is released," said bureau spokesman Chris Burke.

Most states have a way to take away or return earned time based on inmate behavior, said Alison Lawrence of the National Conference of State Legislatures, who wrote "Cutting Corrections Costs: Earned Time Policies for State Prisoners."

Since the beginning of the recession, many states passed bills that increased prisoner earned time to reduce costs, Lawrence said.

According to Lawrence's 2009 review, a Colorado bill passed that same year increased earned time for certain less dangerous offenders to up to 12 days a month. It was projected to save $12 million in three years.

In several states, including Indiana, earned time isn't allowed for offenders in administrative segregation.

"They are not behaving if they are in segregation," Garrison said.

Ebel also wouldn't have qualified for additional earned time in the state of Washington because of his violent record, according to Lawrence's report.

Ebel's prison records clearly demonstrate a system that offered him opportunities and repeatedly awarded him earned time despite bad behavior.

In 2011, Ebel was accepted into the "Thinking for a Change" program, but continued to spend time in an ad-seg cell while waiting for a bed.

DOC began awarding him 10 days of earned time for each of the two months he spent on the waiting list — twice the normal rate for inmates in ad-seg. Morgan said the higher rate was justified because Ebel was classified at a less secure custody level during that time.

Ebel eventually earned another 30 days once he entered the program, but he was booted out after threatening staff members.

On Dec. 1, 2012, DOC awarded Ebel 15 days for completing a pre-release program while in administrative segregation. Two weeks later he was punished again for challenging staff in a threatening way.

State Rep. Claire Levy, D-Boulder, expressed surprise that the DOC is vesting earned time on a monthly basis, rather than waiting for an annual review.

"If the Department of Corrections is not implementing these laws with fidelity, then that is a problem," Levy said. "If they have the power to revoke earned time because of bad behavior and they are not doing it, then we need to review that. I think DOC has the power."

Levy said she sponsored laws increasing ways inmates could receive earned time in support of Clements' ad-seg initiatives, including reducing the number of inmates in administrative segregation and offering inmates more incentives for good behavior.

"DOC has a lot of sticks but not a lot of carrots," she said. "It wasn't our intent to let unruly inmates have an opportunity to get out early."

About "earned time"

At least 31 states provide "earned time" incentives to inmates as a way to encourage good behavior and trim corrections costs, according to Alison Lawrence, author of "Cutting Corrections Costs: Earned Time Policies for State Prisoners," a report compiled for the National Conference of State Legislatures.

Many use earned time to accelerate the "release of lower-risk inmates who complete education, vocational training, treatment and work programs or participate in other productive activities," the report says. In addition to citing cost savings, the report said studies have found that inmates who earned time off their sentences were less likely to commit crimes after their release. But it stressed the importance of awarding earned time to motivated offenders who complete prison programs.

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